Dickenson v. State

• Decision Date: 15 December 1897
• Citation: 43 S.W. 520
• Parties: DICKENSON v. STATE.
• Court: Texas Court of Criminal Appeals

43 S.W. 520

DICKENSON v. STATE.

Court of Criminal Appeals of Texas.

December 15, 1897.

On motion for rehearing. Overruled.

For prior report, see 41 S. W. 759.

HENDERSON, J.

Appellant was convicted under article 426 of the old Penal Code, being article 514 of the new Penal Code, for the unlawful killing of wild deer between the 20th of January and the 1st of August. This case was affirmed at the Austin term, 1897, but appellant filed a motion for rehearing.

The grounds of the motion for rehearing are to the effect that, in 1879, Nacogdoches county, together with other counties, was exempted by virtue of article 430a of the Penal Code (which was an article amendatory of said Code, and passed at the same session of the legislature that the Penal Code was adopted), the contention of appellant being that article 430a has never been repealed. We quote from appellant's own language on this subject, as follows: "In deciding this case, the court seems to have overlooked article 430a entirely. This article exempts Nacogdoches county from the provisions of article 426 of the Penal Code, which makes it a misdemeanor to kill wild deer; and it has never been repealed, modified, or changed by any act of the legislature. See Acts 1879, p. 63, where that article was originally adopted. The act of 1893 (page 45), on which this court bases its opinion, amended article 430, Pen. Code, and did not pretend to amend or repeal article 430a. The act of 1881, while proposing in its enacting clause to amend article 430a, never did so at all. It was not repealed, amended, or re-enacted, and the declaration in the enacting clause that article 430a was amended could not have that effect, because the constitution prohibits it. See section 36, art. 3, of the constitution, which provides that no law shall be revised or amended by reference to its title, but that in such case the act revised and section or sections amended shall be published at length. Now, as stated in the original opinion, article 430a was passed by the legislature in 1879, and was an amendment to the Penal Code, which was adopted at that session of the legislature. By reference to the Penal Code, passed in 1879, it appears that article 430 relates to aquatic fowls, and is as follows: "Art. 430. Aquatic fowls, wild turkeys, and wild pigeons are not included within the provisions of the preceding article." Then follows article 430a, which is the article exempting certain counties from the operation of certain of the preceding articles of said chapter 5. In 1881 this entire chapter came before the legislature for revision. The act is entitled "An act to amend arts. 423, 424, 425, 426, 427, 428, 429 and 430a, and to create art. 426½, and to repeal art. 430, of chap. 5, title 13, of the Penal Code of the Revised Statutes, for the protection of fish and game." It will be noted that every section or article of said chapter in the Penal Code is re-enacted, some of them with amendments, except article 430, relating to aquatic fowls, etc., which is entirely omitted, effectually repealing said article 430; and article 426½ is added to the act, as suggested by the caption. The entire subject-matter of article 430a is re-enacted, but said article finds its way into the act as article 430, and not 430a. The original article 430 having been repealed, its number, 430, is given to the revised article, which was formerly 430a. As we understand it, the complaint is not that the legislature failed to re-enact the subject-matter, and publish it at length as revised, but that they failed to retain the number 430a of said article in its revision. Now, we are not aware of any requirement of the constitution that would constrain the legislature to retain the number of said article so revised. The mandate of the constitution in this regard is simply that "no law shall be revived or amended by reference to its title, but in such case the act revived or the section or sections amended shall be reenacted and published at length." The amendment in this case was not by its title alone, but the subject-matter proposed to be revived and amended, contained in article 430a, was all brought forward and re-enacted and published at length. When this was done, the legislature appears to have given the number of the article 430, and not 430a, as originally contained in the act as amended. The legislature had at the same time repealed article 430; and, said article, with reference to aquatic fowls, no longer existing, it was entirely competent for them to bring said article...